In re C.D.

Supreme Court of West Virginia

January 9, 2017

In re: C.D.

(Wood
County 15-JA-178)

MEMORANDUM DECISION

Petitioner
Father W.D., by counsel John Woods, appeals the Circuit Court
of Wood County's May 27, 2016, order terminating his
parental rights to one-year-old C.D.[1] The West Virginia Department
of Health and Human Resources ("DHHR"), by counsel
Lee Niezgoda, filed its response in support of the circuit
court's order. The guardian ad litem
("guardian"), Ernest M. Douglass, filed a response
on behalf of the child, also in support of the circuit
court's order. On appeal, petitioner argues that the
circuit court erred in denying his motion for a dispositional
improvement period.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

In
November of 2015, the Parkersburg Police Department responded
to a burglary call with shots fired at petitioner's
residence. Petitioner was transported to the hospital with a
gunshot wound to his leg. During the underlying burglary
investigation, petitioner informed the police that the
intruders took a "gram" of heroin and cash. The
child's mother corroborated petitioner's account of
the events. The child's mother also informed
investigators that one of the suspects "purchases
weed" from petitioner. Petitioner then admitted that he
frequently sold drugs in the residence while the child was
present. Upon a search of petitioner's residence, police
observed drug paraphernalia, including syringes that were
within the reach of the child. Based upon these
circumstances, the DHHR filed a petition for abuse and
neglect.

The
following month, petitioner stipulated to the allegations of
abuse and neglect in that he exposed C.D. to unsafe living
conditions and failed to provide adequate supervision because
he kept illegal substances in his home. Thereafter, the
circuit court granted petitioner a six-month
post-adjudicatory improvement period. The terms and
conditions of petitioner's improvement period required
him to submit to a psychological evaluation, to obtain and
maintain a stable residence, to participate in adult life
skills and parenting classes, and to submit to a substance
abuse evaluation and two drug screens per week. The circuit
court also granted petitioner visitation with the child.

In
April of 2016, the guardian filed a motion to terminate
petitioner's improvement period arguing that petitioner
failed to submit to a psychological evaluation, failed to
visit with C.D., failed to establish a safe and stable
residence, and failed to attend adult life skills and
parenting classes. The guardian also alleged that petitioner
provided a false urine sample. By order entered on June 1,
2016, the circuit court terminated petitioner's
post-adjudicatory improvement period and scheduled the matter
for a dispositional hearing. Prior to the dispositional
hearing, the DHHR filed an additional report indicating that
petitioner failed to initiate parenting and adult life skills
classes, missed nine drug screens, and tested positive for
methamphetamines.

The
circuit court held a dispositional hearing on June 27, 2016.
Petitioner failed to appear, but was represented by counsel.
The circuit court found that petitioner exposed the child to
unsafe living conditions and inadequate supervision due to
the inherent dangers associated with keeping and selling
illegal substances in the home where the child resided. Based
on these findings and conclusions, the circuit court ruled
that there was no reasonable likelihood that the conditions
of abuse and neglect could be corrected in the near future
and the child's welfare required termination of his
parental rights. By order entered July 29, 2016, the circuit
court terminated petitioner's parental rights. This
appeal followed.

The
Court has previously established the following standard of
review:

"Although conclusions of law reached by a circuit court
are subject to de novo review, when an action, such
as an abuse and neglect case, is tried upon the facts without
a jury, the circuit court shall make a determination based
upon the evidence and shall make findings of fact and
conclusions of law as to whether such child is abused or
neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is
clearly erroneous when, although there is evidence to support
the finding, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit
court's account of the evidence is plausible in light of
the record viewed in its entirety." Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996).

On
appeal, petitioner argues that the circuit court failed to
consider a less-restrictive alternative prior to terminating
his parental rights. Specifically, petitioner argues that the
circuit court should have granted his motion for a
post-dispositional improvement period in lieu of terminating
his parental rights. West Virginia Code § 49-4-610(3)
provides that a circuit court may grant an improvement period
as a disposition when

[s]ince the initiation of the proceeding, the respondent has
not previously been granted any improvement period or the
respondent demonstrates that since the initial improvement
period, the respondent has experienced a substantial change
in circumstances. Further, the respondent shall demonstrate
that due to that change in circumstances, the respondent is
likely to fully participate in the improvement period.

Further,
we have often noted that the decision to grant or deny an
improvement period rests in the sound discretion of the
circuit court. In re: M.M., 236 W.Va. 108, 778
S.E.2d 338 (2015) (stating that "West Virginia law
allows the circuit court discretion in deciding whether to
grant a parent an improvement period"); Syl. Pt. 6, in
part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589
(1996) (holding that "[i]t is within the court's
discretion to grant an improvement period within the
applicable statutory requirements"). Moreover, we have
held that a parent's "entitlement to an improvement
period is conditioned upon the ability of the
parent/respondent to demonstrate 'by clear and convincing
evidence, that the respondent is likely to fully participate
in the improvement period . . . .'" In re:
Charity H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638
(2004).

In the
case sub judice, it is undisputed that petitioner received an
initial, post-adjudicatory improvement period prior to moving
for a post-dispositional improvement period. As such,
petitioner was required to demonstrate that, since his
initial improvement period, he had experienced a substantial
change in circumstances and, due to that change in
circumstances, he was likely to fully participate in the
dispositional improvement period. We find no support in the
record on appeal for such a conclusion. In fact, the record
is devoid of any evidence that petitioner is likely to fully
participate in the post-dispositional improvement period. To
begin, it is clear that petitioner failed to attend his
dispositional hearing. Furthermore, the record is clear that
petitioner failed to fully participate in his
post-adjudicatory improvement period in that he failed to
initiate adult life skills and parenting classes, failed to
establish a safe and stable home, failed to visit with his
child, missed nine drug screens, and tested positive for
methamphetamines. Based on the record before this Court, we
concur with the circuit ...

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